The applicant had had his application for asylum rejected. Pending deportation, he had been held in custody. The court had found his detention unlawful.
Held: The Home Secretary’s appeal succeeded. The power to detain in such circumstances had to be for the purpose for which the power had been created, and the detention must not be unreasonable in time. The time period here had been lengthy, but the applicant had refused to be returned to Somalia, and there had been a very high risk of his absconding if released. It is for the court, and not for the Secretary of State, to determine the legal boundaries of administrative detention, apart possibly from incidental questions of fact which the court may recognise that the Secretary of State is better placed to decide than itself.
Toulson LJ set out the core principles as he saw them: ‘There is no dispute that the word ‘pending’ in schedule 3, paragraph 2(2) . . and paragraph 2(3) . . simply means ‘until’ . . However, the Home Secretary’s exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case.
Those principles were first established by Woolf J in his judgment in Hardial Singh . . which has been cited with approval in subsequent cases . . After stating those principles, Woolf J continued: ‘What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.’
In some later judgments that sentence has been treated as a third principle. It seems to me that it is really a facet or consequence of the first and second. Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle.’
Judges:
Keene LJ, Longmore LJ, Toulson LJ
Citations:
[2007] EWCA Civ 804, Times 05-Sep-2007
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Bashir, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Nov-2007
B complained of the unreasonable length of time (32 months) for which had been detained pending deportation.
Held: Mitting J said: ‘What Toulson LJ did not address, because it was not necessary to address it on the facts, was whether or not a . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – Rostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
Cited – Saleh, Regina (On the Application of) v Secretary Of State for the Home Department Admn 5-Oct-2009
The claimant challenged his past and continuing detention pending deportation. He had a long series of convictions for dishonesty.
Held: ‘it is indeed disconcerting to find that a non-violent person subject to immigration control has been in . .
Cited – Anam v Secretary of the State for the Home Department Admn 13-Oct-2009
The claimant said that his detention pending deportation was unlawful being in his case in breach of the respondent’s policy of not detaining those with mental health problems. He had committed various offences but was receiving a treatment which . .
Cited – MH, Regina (on The Application of) v Secretary of State for The Home Department CA 14-Oct-2010
The claimant complained that his administrative detention for over 40 months had been unlawful. He now appealed against a finding that it had been lawful save for the final two months.
Held: The appeal failed. The period of time for which he . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 14 November 2022; Ref: scu.258454